Posted by Victoria Strauss for Writer Beware

A fascinating discussion began today on Twitter (as of this writing, it’s still going on–check it out under the #agentpay hashtag), kicked off by agent Colleen Lindsay, who asked, “How would publishing change if agenting moved from commission-based payment to billable hours?”

Those in favor pointed out that agents’ job descriptions have expanded over the past couple of decades, and that they must now do much more for the same 15% they earned twenty years ago. They also get no payment at all for a good portion of what they do on a regular basis–reading queries and manuscripts, editing, submitting books that never sell. In a highly competitive environment, with shrinking advances (at the midlist level, anyway) and cautious publishers, it’s getting harder and harder to make a living.

Those against raised the specter of abuse (there are several questionable agents in Writer Beware’s files who soak their clients for billable hours while doing little or nothing to place manuscripts with reputable publishers), the loss of agents’ entrepreneurial edge if they got paid no matter what (the fact that the agent profits only when the writer does is at the heart of the traditional author-agent relationship); and, of course, the possibility that only wealthy writers could afford to have agents. Several lawyers participating in the discussion also pointed out that keeping timesheets for billing is a soul-sucking timesink that no one in their right mind would want to undertake.

For authors who at this point are feeling their blood pressure rising, I should point out that this is a hypothetical discussion; none of the participating agents are advocating an immediate switch. Colleen’s question does, however, highlight an important issue: agents’ job descriptions really have expanded over the past twenty years, while their commission percentage has remained the same. Just as writers are now routinely expected to take an active role in promoting their books (two decades ago, self-promotion was still very much optional), many agents now feel obliged to take an active role in promoting their writers. Selling books is also much more work than it used to be, especially in the hyper-competitive and risk-averse environment produced by the recent economic downturn. I also think that the droves of laid-off editors who’ve transitioned to agenting–not just recently but during the height of the publisher consolidation frenzy in the 1990’s–have contributed to the problem, with more agents than ever vying for the time of fewer editors than ever.

So it’s not surprising that some agents feel they are underpaid. In my opinion, though, billing hours is not the way to go. It’s too open to abuse. It shuts too many writers out of the picture. It also might have a backlash effect–if only well-heeled writers could afford agents, there would be less need for agents, putting a lot of agents out of business. (Which might in turn limit publishers’ choices. Could that spell the end of big publishers’ agented-submissions-only policies?) Compromise measures– charging commission until the first sale and billable hours thereafter, flat per-project fees, fees charged for adjunct services such as editing, even reading fees–create the same concerns. Would agents select clients on the basis of their ability to pay? Would they drop clients who took a long time between books and didn’t use enough billable services? As for reading and editing fees, that battle was fought years ago. Most agents’ trade groups prohibit them for members.

So what’s the answer, for agents and others who think the current system should change? A commission hike is the most obvious solution. During the 1980s and 1990s, US agents raised their commissions from 10% to 15%; it seems to me that an increase to 20% could be undertaken with relatively minimal pain on all sides. This would acknowledge the ways in which agenting has changed and expanded, but wouldn’t unfairly burden writers.

Another idea might be for agents to sell their expertise. Branches of an agency could be established for fee-based editing, marketing, publicity, packaging, consulting to self-publishers, and the like. These services wouldn’t be sold to clients, however–that would be a conflict of interest (if an agent can make money from a service s/he is urging you to buy, how can you be sure that buying it is really to your benefit?) and could easily be misused. The agency would need to erect an impenetrable wall between the agenting and the fee-charging sides of its business–for instance, no client would ever be sold editing services, and no one who bought editing services would be eligible to become a client. This would be made clear on the agency’s website and in its literature.

Agents can also become publishers. Of course, that’s even more fraught with ambiguity than selling editing or marketing services. If an agent can publish a client’s book herself, how driven will she be to sell the book to another publisher? If an agent is selling a client’s book to himself, how can he adequately represent both parties’ interests? (See the blogs of authors Stacia Kane and Courtney Milan for a more detailed examination of these potential conflicts of interest.) There are very good reasons why the AAR and the ALAA prohibit members from representing both buyer and seller in the same transaction (the AAA allows it, but only if the client is first informed in writing). Again, to ensure ethical practice, there would need to be an impenetrable wall between the agency and the publisher.

All of these things are already happening. A number of established US agents charge 20%. There are agencies with editing and consulting businesses; there are even agencies that own or co-own publishers. In coming years, I think this blurring of lines will become commonplace, as authors, agents, and publishers all struggle to survive in the digital age. As agencies expand their capabilities, it’s essential that they consider the importance of ethical practice, and take the time and trouble to establish rules and customs that ensure that their clients are protected, and their potential clients are fairly dealt with.

(One last thing. I’d love a lively discussion of these issues, but I don’t want this post to become a forum for anti-agent hostility. Please don’t comment if all you want to do is rant about how greedy, elitist, capricious, undeserving, etc. agents are.)